CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 septembre 2003

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Costa , President ,   Mr   A.B. Baka ,   Mr   Gaukur Jörundsson ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mr   M. Ugrekhelidze, judges ,   Mr   T. L. Early , Deputy Section Registrar , Having regard to the above application introduced on 5 November 1998 and registered on 1 June 1999, Having deliberated, decides as follows: THE FACTS The applicant, a national of Hungary and the United States, was born in 1943 and lives in Los Angeles, California. The respondent Government are represented by Mr L. Höltzl, Agent. The facts of the case, as submitted by the parties, may be summarised as follows. A. Particular circumstances of the case In 1991 criminal proceedings on charges of fraud and other offences were initiated against the applicant and five other suspects. On 3   December   1991 the applicant was arrested. On 6 December 1991 the Pest Central District Court ordered his detention on remand. This decision was upheld on appeal. After extensions of his detention on 2 January, 3 March, 2 June, 22 July and 30 October 1992, the applicant was released on 6 January 1993. He alleges that between that date and 18 April 1998 he stayed at his mother’s home in Csömör, Hungary. On 12 March 1993 the case-file was transferred to the public prosecutor’s office. On 27 December 1993 a bill of indictment was preferred in the case. The applicant was charged with the offences of fraud and forgery and manipulation of documents. On 25 January 1994 the Pest Central District Court’s mail to the applicant, which included the bill of indictment, was returned as the addressee was unknown. On 26 February 1994 the Budapest VI/VII District Police Department confirmed that the applicant could not be located at his last known address. Having received information about the applicant’s last address before his emigration to the United States, in August 1994 the District Court unsuccessfully attempted to serve the bill of indictment on him at that address. On 4 January 1995 the U.S. Embassy in Budapest issued a passport to the applicant. According to the stamps in this passport, during the period until April 1998 the applicant travelled to and from Hungary on numerous occasions. On 14 March 1995 the Budapest Police Department informed the District Court that the search for the applicant had been unsuccessful. On 31   March   1995 an arrest warrant was issued. A hearing was held on 27 June 1995. Observing that some defendants had absconded, the District Court suspended the proceedings. Subsequently, the case was transferred to the Budapest II/III District Court. On 8 September 1997 the applicant lodged an application for a passport with the Passport Office in Hungary. On 4 November 1997 the Passport Office refused to renew his Hungarian passport on account of the criminal proceedings pending against him. On 2 February 1998 the Minister of the Interior dismissed his administrative appeal. Subsequently, the District Court was informed of these administrative proceedings. Using the address indicated by the applicant in his passport application, the court again attempted to serve the bill of indictment on him, but without success. In response to the court’s request, the competent Gödöllő Police Department found out about the applicant’s address in Csömör on 12 June 1998. Meanwhile, apparently on 18 April 1998, the applicant left Hungary and returned to the United States where he has remained ever since. On 22 June 1998 a summons to a hearing scheduled for 7 June 1998 was served on the applicant’s wife. At the hearing, however, neither the applicant nor his formerly authorised legal counsel showed up. On 21   July   1998 the counsel informed the District Court that he was no longer representing the applicant. The court’s renewed summons could not be served on the applicant as he was not available at his last known address. The next hearing was held on 21 October 1998. The applicant’s whereabouts remained unknown until March 1999 when he wrote to the Ministry of Justice from Los Angeles. On 26 March 1999 the District Court again issued an arrest warrant. Its further attempts to summon the applicant using his last known addresses in Hungary and Los   Angeles remained unsuccessful. Another hearing took place on 15 July 1999. On this occasion, the court considered the possibility of seeking the applicant’s extradition. On 15 November 1999 the District Court again suspended the proceedings, having regard to the fact that the applicant and other defendants had absconded. On 13 March 2000 the District Court resumed the proceedings. It held a hearing on that day and another hearing on 10 April 2000. On the latter date, it issued an order discontinuing the criminal proceedings against the applicant on the ground that the charges had become time-barred on 31   March 2000. B. Relevant domestic law According to section 35 § 2 of the Code of Criminal Procedure, as in force in the relevant period, a period of suspension is included in the prescription period if the proceedings are suspended because the perpetrator’s whereabouts are unknown. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention about the length and the alleged unfairness of the criminal proceedings against him. He also complains under Article 5 of the Convention that his detention on remand was unjustified, and, under Articles 2, 3 and 8, about alleged atrocities inflicted by the Hungarian police on his common-law wife in 1991. Lastly, he submits, under Article 1 of Protocol No. 1 to the Convention, that the police seized his cars in 1991. He also invokes Articles   1, 7, 13 and 14. THE LAW 1. The applicant’s first complaint relates to the allegedly unreasonable length of the proceedings, in a breach of Article 6 § 1 of the Convention, which provides as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” a) The Government argue that the applicant has not exhausted the domestic remedies available to him under Hungarian law as required by Article 35 §   1 of the Convention, which provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” The Government point out that the applicant has not brought an official liability action under section 349 of the Civil Code seeking compensation for damage suffered on account of the protracted length of the criminal proceedings. The applicant does not address this issue. The Court recalls that an official liability action under section 349 of the Hungarian Civil Code cannot be considered, for want of relevant domestic case-law, an effective remedy in respect of the excessive length of either pending or terminated civil proceedings (see Nyírő and Takács v. Hungary (dec.), nos. 52724/99 and 52726/99 (joined), 17 September 2002, Erdős v. Hungary (dec.), no. 38937/97, 3   May 2001). On the same basis, the Court sees no reason to reach a different conclusion in the present case concerning the length of criminal proceedings. In the light of the foregoing, the Court concludes that the complaint cannot be rejected for non-exhaustion of domestic remedies. b) According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation. The Court notes that it has not been disputed that the proceedings began in 1991 and ended on 10 April 2000 with the District Court’s order to discontinue the proceedings. They therefore lasted some nine years before one level of jurisdiction. The Court observes that, when examining the length of the proceedings, the period to be considered began on 5 November 1992, the date of the Convention’s entry into force in respect of Hungary. However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see Foti and others v . Italy , judgment of 10   December   1982, Series A no. 56, p. 18, § 53 in fine ). The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, which in this instance call for an overall assessment (see, among many other authorities, Cesarini v. Italy, judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17). The Government maintain that – although the case itself was of no particular legal complexity – the difficulties arising in regard to the summoning and hearing of some of the defendants resulted in significant practical complications. The applicant does not address this issue. For the Court, the subject-matter of the case was not particularly complex. However, the authorities were confronted with many practical procedural difficulties in trying to get the case off the ground. As regards the conduct of the applicant and that of the judicial authorities, the Government submit that the main cause of the delay in the case was the applicant’s evasive conduct. Following his release, the applicant moved addresses without notifying the authorities of his whereabouts and left the country for long periods. The applicant disputes this. The Court observes that between the applicant’s release on 6   January   1993 and the service of a summons on his wife on 22 June 1998, no official communication could be delivered to the applicant on account of the absence of a reliable and current contact address, despite the authorities’ repeated efforts to locate his whereabouts and to serve the bill of indictment or summonses on him as well as to enforce the arrest warrant. Neither the applicant nor his lawyer showed up at the hearing in respect of which the summons had been properly served. Moreover, during the rest of the proceedings, and until the case was discontinued, the applicant remained out of the authorities’ reach, apparently because he was abroad. The authorities however repeatedly attempted to summon him and a further arrest warrant was issued. In these circumstances, the Court considers that the domestic authorities showed due diligence in the case and that the delays that have occurred in the proceedings are largely imputable to the applicant. It also notes that the decisions to suspend the proceedings did not affect the applicant’s legal position to his disadvantage as the relevant periods were included in the prescription period under section 35 § 2 of the Code of Criminal Procedure. Moreover, the lapse of time resulted in the applicant’s impunity as the case against him was eventually discontinued on the ground of prescription. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention. 2. The applicant also complains that the proceedings against him were unfair. The Court observes that the proceedings against the applicant were discontinued for reasons of prescription. In these circumstances, he cannot claim to be a victim of a violation of the Convention in this respect, as required by Article 34 of the Convention. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention. 3. The applicant further complains of alleged atrocities inflicted by the police on his common-law wife in 1991 and submits that the police seized his cars, also in 1991. He invokes Articles 1, 2, 3, 7, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. The Court finds that the alleged facts complained of relate to a period prior to the date on which the Convention came into force in respect of the respondent State, whereas the Convention only covers facts subsequent to its entry into force in respect of each Contracting Party. Accordingly, this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention. 4. Lastly, the applicant complains under Article 5 of his pre-trial detention. The Court observes that the applicant’s pre-trial detention ended on 6   January 1993, more than six months before the date on which the application was submitted to the Court. Accordingly, this part of the application has been submitted outside the time-limit prescribed by Article   35 § 1 and must be rejected in accordance with Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   T.L. Early   J.-P. Costa Deputy Registrar   President